Gujarat High Court
Riyaz Razakbhai Dosani vs State Of Gujarat on 9 September, 2024
NEUTRAL CITATION
R/CR.MA/17372/2024 ORDER DATED: 09/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 17372 of 2024
(FOR REGULAR BAIL - AFTER CHARGESHEET)
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RIYAZ RAZAKBHAI DOSANI
Versus
STATE OF GUJARAT
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Appearance:
MR JM PANCHAL, Sr. Adv. with MR KRUNAL L SHAHI(6519)
for the Applicant(s) No. 1
MR JAY MEHTA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 09/09/2024
ORAL ORDER
1. The present application is filed under Section 483
of the Bhartiya Nagrik Suraksha Sanhita, 2023, for
regular bail in connection with the FIR being C.R.
No.11189003212003/2023 registered with the Morbi
City 'A' Division Police Station for the offence
punishable under Sections 302, 307, 323, 341, 427,
143, 147, 148, 149, 120(b) and 34 of the Indian
Penal Code, under Section 25(1-B)A of the Arms
Act, under Section 135 of the Gujarat Police Act
and under Sections 3(1), 3(2) and 3(4) of the
GUJCTOC Act.
2. Heard learned Senior Counsel, Mr. J.M. Panchal
assisted by learned advocate, Mr. Kruna Shahi for
the applicant and learned APP Mr. Jay Mehta for
the respondent - State of Gujarat.
3. Learned Senior Counsel for the applicant submitted
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that the so-called incident has occurred on
07.09.2021, for which, FIR has been lodged on
08.09.2021 and in connection with the same, the
applicant has been arrested on 10.09.2021 and
since then, he is in judicial custody. Learned
Senior Counsel submitted that now the
investigation is concluded and the present
application is preferred after submission of the
chargesheet. Learned Senior Counsel submitted that
in the present case, the complainant is not the
eyewitness and as per the information received by
him from the eyewitness, he has lodged the
aforesaid FIR against the accused persons. Learned
Senior Counsel submitted that FIR is lodged
against total 13 accused persons i.e. 9 known and
4 unknown person and, thereafter at the time of
filing of the chargesheet, the concerned IO has
filed chargesheet against total 18 accused
persons, out of which, 14 persons have been
arrested, whereas 4 accused persons are shown as
absconding accused, which clearly goes on to show
that there is improvement in the version of the
prosecution witnesses. Learned Senior Counsel
submitted that it is the specific case of the
prosecution that on the fateful day of incident,
the deceased was coming from Rajkot to Morbi along
with other person and all of sudden, the accused
reached there and started firing upon the Fortuner
Car, wherein the deceased and other persons were
sitting and because of firing, the deceased has
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sustained injuries and ultimately succumbed to the
said injuries and the persons, who had accompanied
the deceased and were very much available at the
place of occurrence, have narrated entire sequence
of incident of events in a graphical manner and on
the strength of the said information, the
complainant has lodged the FIR. Learned Senior
Counsel has read the statements of those witnesses
and submitted that if the Hon'ble Court would make
a cursory glance upon the statements of those
witnesses, in that event, it is found out that
there is no whisper about the name of the present
applicant, which clearly goes on to show that the
applicant is wrongly dragged into the aforesaid
offence on account of on going rivalry between
members of two groups. Learned Senior Counsel has
referred to Postmortem Note and submitted that as
per the medical evidence, the deceased has
sustained injuries almost on the front side of the
deceased. Learned Senior Counsel submitted that as
stated above, the applicant is in jail since
10.09.2021 and there is voluminous record in the
papers of chargesheet, therefore, it would take
considerable long time to conclude the trial.
Learned Senior Counsel further submitted that the
co-accused have already been granted bail by this
Court. It is, therefore, urged that considering
the facts of the present case and on the ground of
parity, the present applicant may be enlarged on
bail by imposing suitable conditions.
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4. Learned Senior Counsel has put reliance upon
following orders,
(1) the order of the Hon'ble Supreme Court in
case of Shamji @ Shamo Ranchod Fatak
(Patel) Vs. The State of Gujarat, delivered
in Special Leave to Appeal (Crl)
No.6324/2024;
(2) the order of the Hon'ble Supreme Court in
case of Ankur Chaudhary Vs. The State of
Madhya Pradesh, delivered in Special Leave
to Appeal (Crl) No.4648/2024;
(3) the order of the Hon'ble Supreme Court in
case of Pradip Bihari Upadhyay Vs. The
State of Gujarat, delivered in Special
Leave to Appeal (Crl) No.10021/2023;
(4) the order of the Hon'ble Supreme Court in
case of Shivrajbhai Rambhai Vichhiya Vs.
The State of Gujarat, delivered in Special
Leave to Appeal (Crl) No.4088/2022;
5. On the other hand, learned APP for the respondent-
State has opposed grant of regular bail looking to
the nature and gravity of the offence. It is
submitted that the role of the present applicant
is clearly spelt out from the body of the
complaint. Learned APP submitted that the present
applicant is one of the main accused persons and
he had actively participated in the commission of
crime. Learned APP has referred to the statement
of the witness, whose presence was natural at the
place of occurrence and submitted that he has
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described entire sequence of incident of events in
detailed specifically narrating the fact as to how
the accused have made daring attack upon the
Fortuner Car, wherein they were sitting along with
the deceased with an intent to eliminate the
deceased. Learned APP submitted that the deceased
was the main target of the accused persons and
they had hatched conspiracy to eliminate the
deceased and as a part of said conspiracy, they
reached the place of occurrence along with deadly
weapons and made firing upon them, wherein the
applicant has actively participated in the said
offence. Learned APP has referred to the
statements of the eyewitnesses and submitted that
in their statements, they have narrated the
aforesaid facts in detailed, which clearly goes on
to show that the applicant has actively
participated in the commission of crime. Learned
APP submitted that in fact, the applicant had
taken gun from other accused and started firing
upon the deceased and thus, conduct of the
applicant is also required to be taken into
consideration at the time of deciding the present
applicant. Learned APP submitted that the
applicant is having past antecedents and in past,
there are number of offences registered against
him and at the time of registration of FIR, the
provision of GUJCTOC Act were invoked. Learned APP
further submitted that parity cannot apply to the
case of the applicant because the case of the
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present applicant is totally different than other
co-accused, who have been considered for bail.
Thus considering the above facts of the case, the
present bail application may not be entering.
6. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant. I have also
considered the reasoning given by the concerned
court while rejecting the bail application and the
affidavit filed by the IO opposing the said
application.
7. It is the settled position of the law that, at
this juncture detailed discussion of evidence and
canvassing of the allegations contained in FIR as
well as affidavit of the concerned Investigating
Officer or the merits of the case as well, is not
necessary and should be avoided.
8. It is found out from the record that the applicant
- accused is involved in a serious offence of
murder of innocent person, which is a pre-planned
murder as at the place of occurrence, the accused
have reached armed with deadly weapons, that too,
after forming an unlawful assembly and on seeing
the car, wherein the deceased and others were
sitting, they started firing upon the Fortuner
Car, wherein the deceased and others were sitting
and due to said injuries, the deceased succumbed
to the same. The aforesaid incident has been
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witnesses by one eyewitness, who had categorically
narrated entire sequence of incident of events to
the complainant, who in turn lodged the aforesaid
FIR. I have also considered the statements of the
eyewitnesses as well as other witnesses recording
during the course of investigation, which clearly
goes on to show the involvement of the applicant
in the aforesaid commission of crime. It is also
found out from the statement of the eyewitness
that the applicant was holding gun in his hand at
the time of incident, which he had used by
indiscriminately making gunshots upon the
deceased, which resulted into death of the
deceased. Not only that, from the statements of
the witnesses, the presence of the applicant -
accused is established. Over and above that, by
collecting ample material and evidences, the
prosecution has also proved the conspiracy hatched
by the accused and the motive behind commission of
crime. It is also required to be noted that
earlier the offence was registered under the
provision of the IPC, however considering the past
antecedents of the accused persons, the provision
of GUJCTOC Act has been invoked by the prosecuting
agency.
9. I have also considered the order passed by the
learned Sessions Court while rejecting bail
application of the applicant and found that the
learned Judge has considered the role attributed
to the co-accused as also statement of the
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protected witnesses recorded under Section 16 of
the GUJCTOC Act, which clearly goes on to show
that the applicant is active member of the
organized crime syndicate and is actively involved
in the continuing unlawful activities of the gang
and by indulging into such unlawful activities,
they are creating an atmosphere of terror in
public.
10. The submission canvassed by learned advocate for
the applicant with regard to aspect of parity is
also not applicable to the applicant in the facts
of the case. As stated above, the applicant has
actively participated in the commission of crime
with sole intent to eliminate the deceased and
thus, the role attributed to other co-accused is
different than the present applicant, who is
having higher role than those co-accused.
11. At this stage, I would like to put reliance upon
the decision of the Hon'ble Apex Court in the case
of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI
Through its Director, reported in (2007) 1 SCC 70,
wherein, the Apex Court has laid down that, while
considering an application for regular bail, the
Courts shall have to take into consideration, the
following aspects,
(a) The nature of accusation and the severity
of punishment in case of conviction and the
nature of supporting evidence;
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to
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the complainant;
(c) Prima facie satisfaction of the court in
support of the charge;
12. The Hon'ble Apex Court, further, observed at
Paragraphs-10 and 16 thus;
"10. In our opinion none of the aforesaid
decisions can be said to have laid down any
absolute and unconditional rule about when
bail should be granted by the Court and
when it should not. It all depends on the
facts and circumstances of each case and it
cannot be said there is any absolute rule
that because a long period of imprisonment
has expired bail must necessarily be
granted.
16. We are of the opinion that while it is true
that Article 21 is of great importance
because it enshrines the fundamental right
to individual liberty, but at the same time
a balance has to be struck between the
right to individual liberty and the
interest of society. No right can be
absolute, and reasonable restrictions can
be placed on them. While it is true that
one of the considerations in deciding
whether to grant bail to an accused or not
is whether he has been in jail for a long
time, the Court has also to take into
consideration other facts and
circumstances, such as the interest of the
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society."
13. The Hon'ble Apex Court has in a decision in case
of Prasanta Kumar Sarkar Vs. Ashis Chatterjee &
Anr., reported in (2010) 14 SCC 496 has made
observation as under,
"9. It is well settled that, among other
circumstances, the factors to be borne in
mind while considering an application for
bail are:
"(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii)severity of the punishment in the
event of conviction;
(iv) danger of the accused absconding or
fleeing, if released on bail;
(v) character, behaviour, means, position
and standing of the accused;
(vi) likelihood of the offence being
repeated;
(vii) reasonable apprehension of the
witnesses being influenced; and
(viii) danger, of course, of justice
being thwarted by grant of bail."
14. The Hon'ble Apex Court has in a decision in case
of Mahipal vs. Rajesh Kumar @ Polia & Anr.,
reported in (2020) 2 SCC 118, it has been held
that:-
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"12. The determination of whether a case is fit
for the grant of bail involves the
balancing of numerous factors, among which
the nature of the offence, the severity of
the punishment and a prima facie view of
the involvement of the accused are
important. No straitjacket formula exists
for courts to assess an application for the
grant or rejection of bail. At the stage of
assessing whether a case is fit for the
grant of bail, the court is not required to
enter into a detailed analysis of the
evidence on record to establish beyond
reasonable doubt the commission of the
crime by the accused."
15. The Court has also gone through the decisions
relied upon by the learned Senior Counsel for the
applicant. There cannot be any dispute with regard
to the ratio laid down in the same. However, in
the facts and circumstances of the case on hand
and this being discretionary relief, which
requires to be granted judiciously, the said
decisions would be of no help to the present
applicant at this juncture.
16. From the aforesaid discussion, it appears that as
per the prosecution case, the applicant is
involved in the serious offence and taking into
consideration the complicity of the applicant,
there being apprehension of the witnesses being
influenced, severity of punishment as drawn from
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the nature and gravity of the accusations, after
taking due consideration of the submissions of the
parties, and the settled case law in various
judgments passed by the Hon'ble Apex Court and
various Hon'ble High Courts, without expressing
any opinion on the merits of the case, I am of the
opinion that it is not a fit case for bail.
17. Accordingly, the present application is rejected.
18. Needless to say that observations made herein
above are confined to decision of the present bail
application.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
